1 2025:CGHC:27949 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA No. 448 of 2017 Sadhin Bai Wd/o Daras Ram Caste Kurmi Aged About 65 Years R/o Village Janjgir , Tehsil Janjgir District Janjgir Champa Chhattisgarh ., Chhattisgarh ... Appellant (s) versus 1. Smt. Baijanti Singh W/o Shri Budhd Singh Aged About 48 Years R/o Village Janjgir, Tehsil And Police Station Janjgir District Janjgir Champa Chhattisgarh ., Chhattisgarh 2. Devi Lal S/o Nanki Ram Caste Kurmi R/o Village Pacheda Tehsil Janjgir District Janjgir Champa Chhattisgarh ., District : Janjgir-Champa, Chhattisgarh 3. Sirish Ram S/o Puni Ram , Caste Kurmi Aged About 31 Years R/o Village Nawapara Tehsil Janjgir, District Janjgir Champa Chhattisgarh ., District : Janjgir-Champa, Chhattisgarh 4. State Of Chhattisgarh, Through Collector, Janjgir , District Janjgir Champa Chhattisgarh ., District : Janjgir-Champa, Chhattisgarh ... Respondent(s) For Appellant : Mr. Santosh Dubey, Advocate For Respondent No.1 : Mr. Akash Deep Sharma, Advocate on behalf of Mr. Anish Tiwari, Advocate For Respondent No.2 : Mr. Ashok Kumar Swarnakar, Advocate For Respondent No. 4 : Mr. Tarkeshwar Nande, Panel Lawyer SANTOSH KUMAR SHARMA Digitally signed by SANTOSH KUMAR SHARMA Date: 2025.08.19 16:12:11 +0530 2 Hon’ble Justice Shri Narendra Kumar Vyas Order On Board 26.06.2025. 1. This first appeal under Section 96 CPC has been filed by appellant/ defendant No. 3 against the finding recorded by the learned 3rd Additional District Judge, Janjgir, District Janjgir Champa (CG) in Civil Suit No. 20-A of 2015, though the learned trial Court has dismissed the suit but recorded its finding in paragraph-31 of the judgment, that in a situation of two Will the previous Will become unnecessary as second Will is representing the last wisdom of the executant. Plaintiff Smt. Baijanti Singh has filed cross objection under Order 41 Rule 22 (1) of CPC challenging the judgment and decree passed in the suit by learned 3rd Additional District Judge, Janjgir District Janjgir-Champa. 2. For the sake of convenience, the parties shall be referred to in terms of Civil Suit No. 20-A/2015. 3. Brief facts as mentioned in the plaint are that plaintiff has filed civil suit before the learned trial Court mainly contending that:- (A) Darasram was the owner of the land bearing khasra No. 2588/2, area 0.29 acres situated at Janjgir, District Janjgir-Champa (hereinafter referred to as suit land) till 21.08.2007. The defendant No. 2 took care of Darasram as he was issuleless, therefore, on 31.03.1997, Darasram had executed a Will in favour of Sirish Ram/defendant No.2 who was nephew of his wife. Darasram died on 21.08.2007. 3 (B) It is contended that after death of Darasram, defendant No.2 obtained possession over the suit property and mutated in his name on 27.06.2009 thereafter he sold the suit property to the plaintiff by registered sale deed dated 30.08.2011 at Rs. 4,17,400/- and gave possession of the said land to her, since then she is in possession of the suit property . It is also contended that defendant No.1/Devilal tried to dispossess her from the suit property on the strenght of Will executed by Darasram, which has necessitated the plaintiff to file a suit. 4. The defendant No.1 has filed his written statement denying the allegation made in the plaint mainly contending that (A) Darsaram used to live with him during his lifetime and both were doing farming on the suit land and he is nephew of Darasram being son of his elder sister Radhabai. It is contended that during life time, Darasram was healthy and executed Will in his favour, therefore, he acquired ownership and possession of the suit property and mutated his name in the revenue record. Defendant No. 1 has further contended that Will executed in favour of defendant No. 2 is doubtful, as such he has no legal right over the suit land to sell the property to the plaintiff. It has also been contended that Will was prepared in collusion with other persons, as such the first Will is forged one and the basis of forged Will mutated his name in the revenue record by defendant No.2. (B) It is also contended that the defendant No.1 filed an application for transfer of the land before Tehsildar Janjgir which was allowed vide order dated 04.04.2008. Thereafter, the suit property was registered in the name 4 of defendant No.1 in the revenue records. Thereafter Defendant No. 3/Sadhin Bai had challenged the same before Sub-Divisional Officer, Revenue, Janjgir, claiming herself to be wife of deceased Darsaram in which it has been found that Will dated 15.04.2006 was found to be genuine and has rejected the same. Thereafter, defendant filed an application before Tehsildar Janjgir, which was allowed by order dated 04.04.2008. Thereafter, he filed an application before Tahsildar, Janjgir for transferring his name which was allowed and his name was recorded in the revenue record and subsequently, the land was demarcated by him thereafter it came to his knowledge that actual area of the suit land was 9- 1/2 dismil in stead of 19-1/2 dismil and since then, the defendant No.1 is in possession of the suit land. It is contended by him that his uncle has never informed him about execution of another Will, therefore, existence of Will in favour of plaintiff is fabricated and doubtful. (C) It is contended by the defendant No.1 that the plaintiff and the defendant No.2 in collusion with the then Tahsildar and has under valued the suit property and prepared forged report of column 22 to the effect that the disputed land is adjacent to south of plaintiff’s land which is against the guideline of Registration Department, as such registered deed executed on 30.08.2011 is null and void. Defendant No.1 made complaint before the competent authority. On investigation, it was found that stamp of Rs. 1,76, 000/- was less paid stamp duty by the plaintiff thereafter Incharge Police Station submitted his report before Sub Divisional Officer, Revenue. It is also stated that the disputed land was situated at 21 Ambedkar Ward 5 Bhatapara of Janjgir and at the time of registration its market value of Rs. 3000/- sq fit. The Sub Registrar without proper investigation of the land by supporting the plaintiff and defendant No.2 on less payment of stamp duty executed the sale deed of the suit property. 5. The defendant No.3 has also filed counter claim on 07.07.2015 as reflected from the order sheet and the same was withdrawn by the defendant No.3 as reflected from the order sheet dated 16.09.2015. The order sheet further reflects that since counter claim has been submitted after recording of the evidence, therefore, defendant No. 3 intends to withdraw the same and accordingly permission was sought to withdraw which was allowed by the trial Court. The defendant No. 3 has contended in her written statement that her husband has not executed any Will in favour of defendant No.1 and 2 and she is having title over the suit property and is in possession of the same, therefore, no order of injunction can be passed in favour of plaintiff. It has also been contended that defendant No. 3 has published notice in Dainik News paper on 07.010.2012 wherein she has intimated that she is in possession of the suit property. 6. On the pleading of the parties, learned trial court has framed as many as four issues. Relevant issues are extracted as under:- 1- D;k ekStk tkatxhj] i0g0ua0 47] jk0fu0ea0 o rglhy tkatxhj ftyk tkatxhj&pkaik esa fLFkr [kljk uacj 2588@2 jdck 0-29 ,dM+ okn Hkwfe ij okfnuh crkSj Lokfeuh dkfct gS\ 2- D;k okfnuh okn Hkwfe ij izfroknh Ø0 1 ls 3 ds fo:) LFkk;h O;kns’k izkIr djus dh vf/kdkfj.kh gS\ 3- D;k okfnuh ds }kjk okn dk ewY;kadu mfpr :i ls fd;k tkdj leqfpr U;k;’kqYd vnk fd;k x;k gS\ lgk;rk ,oa O;;\ 6 7. The plaintiff to substantiate his case has examined herself as (PW-1), Paduman (PW-2), Gendram (PW-3), Balram Yadav (PW-4), Bhaskar Giri Goshwami (PW-5) and Defendant examined himself as (DW-1), Gopal Pradhan (DW-2) and Rukhmani (DW-3). 8. Learned trial Court on the basis of evidence, material on record has dismissed the suit while deciding the issue No. 1 and 2 against the plaintiff. Learned trial Court while deciding the issue No. 1 and 2 has recorded its finding that in view of the fact that two Wills have been executed and the previous Will lost its significance in view of execution of subsequent Will which is the last wisdom of executant and this finding has been assailed by the defendant No. 3 by filing appeal under Section 96 of the CPC. 9. It has been submitted by learned counsel for the appellant that the said finding may be used against defendant No.3 in any proceedings, therefore, it is incumbent upon defendant No.3 to challenge the same. It has also been contended that learned trial Court has committed illegality in not granting the relief of declaration of possession or title of the suit property despite ample evidence brought on record by defendant No.3 and would pray for allowing the appeal. 10. The plaintiff has filed cross objection contending that learned trial Court has committed illegality in recording its finding that the Will has not been proved. It has also been contended that first Will dated 31.03.1997 was registered Will, duly proved by the statement of the subscriber and in absence of any clause regarding revocation of first will in the alleged second Will, the genuineness of the first will cannot be disputed. It has also 7 been contended that it is settled legal position of law that deficiency of stamp duty in a registered sale deed in curable error under the provisions of Indian Stamp Act, which has been completely ignored by the learned trial Court while passing the impugned judgment and decree. It has also been contended that in the mutation proceedings and in the order dated 27.06.2009, it is quite vivid that defendant No.3 Sadhin Bai was party to the said proceedings who did not raise any objection against the mutation and also supported the execution of the Will in favour of defendant N.2, as such she cannot withdraw her previous stand in this appeal. He would further submit that against the finding recorded by the trial Court appeal filed by defendant No.3 is not maintainable but would pray for setting aside the judgment and decree dated 30.08.2017 passed by learned trial Court and would pray for decreeing the suit. 11. I have heard learned counsel for the parties and perused the record. 12. From the submission made by respective counsels in the appeal as well as in the cross objection raised by the plaintiff, the points emerged for determination by this Court are ;- (I) whether the first appeal is maintainable against the finding recorded by the trial Court while dismissing the suit (ii) whether learned trial Court was justified in dismissing the suit of declaration and permanent injunction filed by the plaintiff by holding that the first Will has lost its significance in view of execution of second Will. Finding and discussion on issue No.1 8 13. Submission of learned counsel for the appellant/defendant No.3 that the finding recorded in paragraph-31 regarding will may adversely affect right of the defendant No.3, therefore, it is incumbent upon the defendant No.3 to challenge the same as in any proceedings this finding will be operated against her in view of principle of res-judicata, as such appeal is maintainable which is being considered by this Court. 14. To appreciate this submission, it is expedient for this Court to go through the provisions of Order 43 Rule 1 of the CPC which are as under:- Order 43 Appeal from orders. Order 43 Appeal from orders. - An appeal shall lie from the following orders under the provisions of section 104, namely:- (a) an order under rule 10 of Order VII returning a plaint to be presented to the proper Court [except where the procedure specified in rule 10A of Order VII has been followed]; (b) [*****] (c) an order under rule 9 of Order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit; (d) an order under rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte [*****] (f) an order under rule 21 of Order XI; (g) [*****] (i) an order under rule 34 of Order XXI on an objection to the draft of a document or of an endorsement; (j) an order under rule 72 or rule 92 of Order XXI setting aside or refusing to set aside a sale; [(ja) an order rejecting an application made under sub-rule (1) of rule 106 of Order XXI, provided that an order on the original application, that is to say, the application referred to in sub-rule (1) of rule 105 of that Order is appealable.] (k) an order under rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit; 9 (l) an order under rule 10 of Order XXII giving or refusing to give leave; (m) [*****] (n) an order under rule 2 of Order XXV rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit; [(na) an order under rule 5 or rule 7 of Order XXXIII rejecting an application for permission to sue as an indigent persons:] (o) [*****] (p) orders in interpleader-suits under rule, rule 4 or rule 6 or Order XXXV; (q) an order under rule 2, rule 3 or rule 6 of Order XXXVIII; (r) an order under rule 1, rule 2 [rule 2A], rule 4 or rule 10 of Order XXXIX; (s) an order under rule 1 or rule 4 of Order XL; (t) an order of refusal under rule 19 of Order XLI to re-admit, or under rule 21 of Order XLI to re-hear, an appeal; (u) an order rule 23 [or rule 23A] of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court; (v) [*****] (w) an order under rule 4 of Order XLVII granting an application for review. 15. The issue with regard to filing of appeal against any finding is subject matter of examination before the Hon’ble Supreme Court in the case of Smt. Ganga Bai vs Vijay Kumar and others reported (1974) 2 SCC 393, wherein the Hon’ble Supreme Court has has held as under;- 15. It is thus clear that the appeal filed by defendants 2 and 3 in the High Court was directed originally not against any part of the preliminary decree but against mere finding recorded by the trial court that the partition was not genuine. The main controversy before us centers round the question whether that appeal was maintainable on this question the position seems to us well- established. There is a basic distinction between the right of suit and the right of appeal. There is an inherent right in every person to bring suit of a civil nature and unless the suit is barred by statute one may, at one's peril,_bring a suit of one's choice. It is no answer to a suit howsoever frivolous the claim, that the law confers no such 10 right to sue. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. But the position in regard to appeals is quite the opposite. The right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law. That explains why the right of appeal is described as a creature of statute. 17. These provisions show that under the Code of Civil Procedure , an appeal lies only as against a decree or as against an order passed under, rules from which an appeal is expressly allowed by Order 43, Rule 1. No appeal can lie against a mere finding for the simple reason that the Code does not provide for any such appeal. It must follow that First Appeal No. 72 of 1959 filed by defendants 2 and 3 was not maintainable as it was directed against a mere finding recorded by the trial court. 21. Thus, the appeal filed by defendants 2 and 3 being directed against a mere finding given by the trial court was not maintainable; defendants 2 and 3 were not denied by the preliminary decree the right to pay the decretal amount; and the two defendants could even have applied under Order 21, Rule 89, for setting aside the sale in favour of the appellant but they failed to do so as, presumably, they were not interested in paying the amount. The High Court was therefore wholly in error in allowing the amendment of the Memorandum of Appeal, particularly when defendants 2 and 3 had neither explained the long delay nor sought its condonation. 16. The learned trial Court while dismissing the suit has also recorded its finding that the defendant No. 3 has not filed any counter claim challenging title and possession of the suit property as such also, the appeal challenging the finding in paragraph-31 is not maintainable in view of the law laid down by the Hon’ble Supreme Court. Accordingly, the appeal filed by defendant No. 3 is liable to be dismissed and it is dismissed. Finding and discussion on issue No.2 17. Submission made by learned counsel for the plaintiff that learned trial Court has committed illegality in recording its finding that the Will executed on 31.03.1997 has lost its significance in view of execution of Will in favour of defendant No. 1 on 15.04.2006 by Darasram in favour of defendant No.1. 11 Though, the first Will 31.03.1997 is a registered Will and statement of subscriber was recorded. This submission is liable to be rejected in view of the fact that learned trial Court has rightly recorded its finding that the second Will is the last wisdom of executant and also considering the law laid by the Hon’ble Supreme Court in the case of Mahesh Kumar (D) By Lrs vs Vinod Kumar reported in 2012 (4) SCC 387 wherein the Hon’ble Supreme Court in paragraph-47 has held as under:- 47. The mere fact that Kailash Chand lives at a distance of about four furlong from the house of Bal Kishan (father in law of the appellant) has no bearing on the issue relating to validity of the Will nor the non-examination of the persons belonging to the same community has got any relevance. The absence of a categorical recital in Will dated 10.2.1992 that the earlier Will was cancelled is also not relevant because once the execution of the second Will is held as duly proved, the earlier Will automatically becomes redundant because the second Will represents the last wish of the testator. 18. The learned trial Court while recording its finding that Will dated 31.03.1997 has been proved but since the subsequent will has also been brought on record and no evidence was led by the plaintiff to challenge the execution of second Will dated 15.04.2006 by amending its pleading to challenge the execution of second Will, the learned trial Court was justified in not granting the relief of declaration and title in favour of plaintiff. The plaintiff even in his cross objection submitted before the Court has not questioned the execution of Will dated 15.04.2006, as such the cross objection by the plaintiff is liable to be dismissed and it is dismissed. 12 19. Consequently, first appeal No. 448 of 2017 and cross objection filed by the plaintiff under Order 41 Rule 22 CPC is liable to be dismissed and the same is dismissed. Decree be drawn up accordingly. Sd/- (Narendra Kumar Vyas) Judge Santosh